The U.N. Human Rights Council Is Not Enough: Time for a NewApproach to Human Rights

About the Author

The United Nations'
record on promoting basic human rights is one of decline. The
drafters of the Charter of the United Nations included a pledge by
member states "to reaffirm faith in fundamental human rights, in
the dignity and worth of the human person, in the equal rights of
men and women."[1] U.N. treaties, such as the Universal
Declaration on Human Rights, which the General Assembly passed in
1948, form the core of international standards for human rights.
Each U.N. member state is party to at least one of the seven major
human rights treaties. Yet the U.N.'s record in promoting basic
human rights in recent times has been one of failure and
inaction.

Perhaps no institution
illustrates this more than the U.N. Commission on Human Rights
(CHR). As the premier human rights body in the U.N. system, the CHR
is supposed to hold "public meetings to review the human rights
performance of States, to adopt new standards and to promote human
rights around the world."[2] Sadly, the CHR has devolved into a feckless
organization that human rights abusers use to block criticism or
action to promote human rights. Even Secretary-General Kofi Annan
has acknowledged, "We have reached a point at which the
commission's declining credibility has cast a shadow on the
reputa­tion of the United Nations system."[3]

Considering the
tattered state of the U.N.'s reputa­tion in the wake of the
Oil-for-Food scandal, peace­keeping abuses in the Congo and
elsewhere, and the recent procurement scandals, one would think
that the U.N. would act quickly to address the dys­functional
embarrassment of the CHR. Regrettably, while the United States and
other countries have been fighting to replace the CHR with a
smaller, more effective Human Rights Council, other coun­tries
that are eager to prevent scrutiny or criticism of their actions
have strongly opposed these efforts.

While it is too early
to predict the final outcome of negotiations, it seems likely that
the resulting council will fall far short of the reformed,
effective body sought by the U.S. This is hardly surprising because
every nation can claim U.N. membership, regardless of its
dedication to basic human rights and freedoms, and the U.N.
reflects the lack of free­dom and respect for human rights
among its mem­bership. Until the U.N. can overcome this
problem, the U.S. and other countries that seek to advance basic
human rights should establish an indepen­dent group of
politically and economically free nations to supplement and
encourage U.N. efforts to promote basic human rights and
freedoms.

The Struggle for
Reform

The Commission on Human
Rights was created by the U.N. Economic and Social Council (ECOSOC)
in 1946 to examine, monitor, and report on human rights issues in
countries and human rights violations worldwide. It meets
annu­ally for six weeks in March and April in Geneva,
Switzerland. The CHR is subsidiary to ECOSOC, and its 53 members
are elected by regional group­ings.[4] There are no qualifications
for membership aside from being selected by the regional
group.

The commission has
fallen far from the aspira­tions of its founders. Its most
important achieve­ment was completing the Universal Declaration
on Human Rights in 1948. Subsequent years were spent developing
standards relating to the basic rights outlined in that
document.

In recent years,
however, the commission has been hijacked by human rights abusers
that have used it to prevent scrutiny of human rights abuses inside
their borders and block action against abus­ers. An egregious
example is the failure of the com­mission to confront
well-documented abuses in the Darfur region of Sudan-inaction that
is abetted by Sudan's membership on the CHR. Six of the 53 CHR
members-China, Cuba, Eritrea, Saudi Ara­bia, Sudan, and
Zimbabwe-were considered among world's "worst of the worst" abusers
of human rights by Freedom House in 2005.[5] In a mockery of the
commission's purpose, Libya served as CHR chairman in
2003.

The commission's
inability to confront human rights abusers in the U.N. led the
United States and other advocates to demand that it be replaced
with a more effective Human Rights Council. The U.S. and other
countries have sought to make this coun­cil a smaller, more
effective advocate for human rights, with standards for membership
to make it more difficult for human rights abusers to serve.
Specifically, the U.S. has sought to:

Establish the Human
Rights Council as a prin­cipal U.N. organ that is not
subordinate to the General Assembly;

Adopt minimum criteria
for membership, such as prohibiting membership for countries that
are subject to Security Council sanction;

Require members to be
elected by a two-thirds majority of the General
Assembly;

Limit the size of the
council to 20 to 30 mem­bers (according to news reports), which
would be much smaller than the unwieldy and ineffi­cient
53-member CHR;

Have the council sit in
permanent session so that human rights abuses could be considered
year-round instead of just six weeks during the year;
and

Adopt a peer review
system under which human rights records would be judged by other
states.[6]

These reforms are
strongly opposed by countries that have long used the commission to
impede scrutiny and block action against human rights abusers. As a
result, the Outcome Document for the September 2005 World Summit
said next to nothing on the Human Rights Council aside from
endorsing its creation.[7]

The subsequent months
have been spent in time-consuming negotiations over the shape of
the new council. Opponents of an effective council have steadfastly
opposed allowing the council to sit in permanent session or set any
criteria for mem­bership. They have sought to make the council
subservient to the General Assembly and to keep it at 53 members
apportioned by geography. They have even rejected the idea that
countries under Security Council sanction should be barred from
membership, which would affect only seven of the 191 U.N. member
states. Indeed, if the opponents of reform have their way, the only
change between the Commission on Human Rights and the Human Rights
Council will be the name.

The February 1 draft
proposal for the Human Rights Council demonstrates that the
opponents of reform are succeeding in blocking major changes.[8] The
proposal would:

Make the council a
subsidiary organ of the Gen­eral Assembly.

Minimally reduce the
membership to 45 (com­pared to the CHR's 53
members).

Allocate a specified
number of seats to regional blocs, reinforcing opportunities for
the type of backroom power brokering that aided human rights
abusers to gain CHR membership.

Not require the
regional groupings to offer more countries than slots, which would
deny the overall membership an opportunity to vote against a
particularly unqualified candidate.

Not adopt specific
qualifications for membership or bar any member of the U.N.-not
even those under Security Council sanction-from sitting on the
council. Instead, the proposal requests, "When electing members of
the Council, Member States shall take into consideration the
candi­dates' contribution to the promotion and protec­tion
of human rights and the voluntary pledges and commitments made
thereto.… Members shall also take into account whether there
are any situations that constitute systematic and gross violations
of human rights or any agreed mea­sures currently in place at
the United Nations against a candidate for human rights
violations."

Formally establish
controversial "rights" under the council's authority, such as the
right to devel­opment, and instruct the council to promote and
protect an unspecified collection of "civil, politi­cal,
economic, social, and cultural rights."

Require the council to
meet at least three times per year, only marginally increasing the
session to a minimum of 10 weeks versus six weeks for the
CHR.

Subject council members
to periodic review of their human rights practices based on
"objec­tive and reliable information."

Agreement has not been
reached on whether election to the council by the General Assembly
will require a simple majority vote or a two-thirds majority vote.
While the two-thirds requirement could make it more difficult for
human rights abus­ers to gain seats, it is no panacea and is
unlikely to deny seats to noted human rights abusers like China,
Cuba, or Saudi Arabia, which wield consid­erable influence in
the regional blocs and the Gen­eral Assembly. Even viewed in
the most positive light, this proposal falls far short of the
reform benchmarks set forth by the United States.

Unrealistic
Expectations

It should surprise no
one that the council will be less than ideal. After all, every
nation claims mem­bership in the U.N. even though many fail to
adhere to the principles embodied in the U.N. Charter, including
the commitment to fundamental human rights.[9] Indeed, many member
states actively subvert those principles and repress their own
populations. The very culture of the U.N. lends itself to
obfuscation, and debates over basic human rights frequently devolve
into arguments over the merits of various entitlements and demands
for the developed world to give addi­tional resources and
special privileges to develop­ing countries.[10]

Pakistani Ambassador to
the United Nations Munir Akram illustrated this point by expressing
outrage at the suggestion that states under U.N. sanction for human
rights abuses should be ineligi­ble for membership on the
council:

The presumption that a
country is a violator of human rights is very subjective. If you
want to create criteria…that exclude certain countries, why
not those that don't support trade liberalization or that don't
implement foreign aid targets? The knife cuts both ways.[11]

Regrettably, such
assertions that failing to meet arbitrary aid targets is morally
equivalent to state-sanctioned rape, slavery, religious
persecution, or genocide are all too common at the U.N.

The problem facing the
Commission on Human Rights or the proposed Human Rights Council in
the promotion of basic human rights and freedoms is that a
substantial portion of the U.N. member­ship simply does not
observe these standards.

According to Freedom
House, less than half of the U.N. membership is politically free.
The 2006 edition of Freedom in the World lists only 89
countries that are considered free in terms of political rights and
civil liberties. Worse, "six of the eighteen most repressive
governments- those of China, Cuba, Eritrea, Saudi Arabia, Sudan,
and Zimbabwe-are members of the Commission on Human Rights (CHR),
repre­senting nearly 11 percent of the 53-member body….
An additional nine countries Freedom House rates as 'Not Free'
enjoy membership on the Commission: Bhutan, Egypt, Guinea,
Mau­ritania, Pakistan, Qatar, Russia, Swaziland, and Togo.
Together, 'Not Free' countries comprise just over one quarter of
the Commission's membership."[12]

According to the
2006 Index of Economic Free­dom, published by The
Heritage Foundation and The Wall Street Journal, less than
half of the U.N. membership is economically "free" or "mostly
free."[13] The Index lists only 20 of 161
countries as economically "free." Even includ­ing "mostly free"
countries, there are only 72 countries in the top two categories of
economic freedom.[14] Well over half of the 2005 CHR membership
were economically "mostly unfree" or "repressed" according to the
2006 Index.

The regrettable reality
is that the U.N. reflects the lack of freedom among its membership.
The 191-member General Assembly-strongly influenced by China, Cuba,
Pakistan, Zimbabwe, and other nations opposed to an effective human
rights body-will not create an independent Human Rights Council
capable of taking strong actions on human rights abusers. It is
therefore unrealistic to expect the U.N. to lead the effort to
confront human rights abusers among its membership.

Time for a Two-Track
Approach on Human Rights

When asked about the
negotiations over the Human Rights Council, U.S Ambassador John
Bolton declared, "We want a butterfly. We're not going to put
lipstick on a caterpillar and declare it a success." An effective
human rights body in the U.N. could greatly bolster efforts to
strengthen basic human rights and representative govern­ment.
However, such a body does not exist and is unlikely to be
established if the recent proposal is any indication. Any objective
observer must con­clude that the draft proposal for the Human
Rights Council is far closer to a caterpillar than to a
butterfly.

The question is what
the United States should do about this disappointment. Continued
negotiation may yield incremental improvements, but the
result­ing council is unlikely to meet the standard sought by
the U.S. The temptation to walk away from the inadequate council by
suspending American partic­ipation and support is strong and
has its merits. Such an action would make a clear statement about
the council's failings and absolve the U.S. of culpabil­ity in
the council's likely course of milquetoast inac­tion. It could
possibly even spur further reform.

However, walking away
would also minimize U.S. influence in the council and probably
further weaken the council's determination to confront human rights
abusers. A better solution would be for the U.S. to use membership
on the council to push its human rights agenda in council and to
protect U.S. interests by blocking codification of objectionable
"rights" while simultaneously creat­ing a supplementary human
rights effort outside of the U.N. framework and political
limitations.

The bipartisan Task
Force on the United Nations observed that "until the United Nations
holds its members accountable for their failure to observe
well-established human rights norms, the United Nations is not the
best forum for the pro­posed Human Rights Council."[15]
Indeed, there is no reason why the council should be the only
mul­tilateral body dedicated to advancing basic human rights
and freedoms. An independent human rights body composed solely of
countries dedi­cated to advancing and protecting basic human
rights and freedoms could supplement the coun­cil's efforts and
pressure it into becoming more vig­orous and assertive in its
inquiries, reviews, and actions.

Suggesting that
governments create a more active international body to promote
basic human rights and freedoms is hardly heretical. Indeed, the
Council for a Community of Democracies, the Council of Europe, the
Organization for Security and Cooperation in Europe, and other
organiza­tions already seek to promote democracy and human
rights outside of the U.N. framework. These organizations vary in
their formal structures, binding commitments, and supporting
structures and bureaucracies. Theoretically, one of them could be
modified to remove the regional limita­tions on membership and
extend its focus on democracy and human rights to include economic
liberty, but they already perform useful tasks, and establishing a
new complementary group may well be a better and easier option,
given the difficulty in reforming any multilateral
organization.

The United States
should approach other nations that are dedicated to promoting basic
human rights and freedoms about cosponsoring a summit to establish
an independent group to promote basic human rights and protect
individual liberty. To minimize politicization of membership in
this body, qualification should be determined by inde­pendent
analysis of government policies on basic human rights, including
political and economic freedom. A variety of measures are
available. For example, using an eligibility standard of "free"
countries according to Freedom in the World 2006 and "free"
or "mostly free" countries according to the 2006 Index of
Economic Freedom would yield a group of at least 54 countries
from all regions of the world that provide strong protections to
their citi­zens' economic and political rights.[16]

Establishing an
independent human rights body outside the U.N. does not preclude
cooperation with the U.N., or even merging such a body with the
U.N. at some future date, if the U.N.'s member­ship were to
change in a way that made it more likely to promote basic human
rights and freedoms aggressively. To minimize barriers to this
future option, the body should be informal, perhaps mod­eled
after the G-8, and meet as often and for as long as deemed
necessary to address specific human rights problems or jointly
review basic human rights and freedoms around the world. The
ineffi­ciency inherent in a group of this size should be
mitigated by the common observance of basic human rights and
political and economic freedom, but a much smaller executive
committee should also be selected to conduct reviews and
recom­mend action on countries that violate the group's
established principles. Failure to maintain mem­bership
standards should result in censure or ejec­tion from the human
rights body.

Governments,
nongovernmental organizations, and others seeking to strengthen the
observance of basic human rights should not let their affection for
the U.N. blind them to its inability to hold abusers to account.
The priority should be to advance the cause of basic human rights
and political and eco­nomic freedom. These goals are best
achieved through a two-track approach to human rights- one in the
U.N. and the other outside the U.N. in the form of an independent
supplementary group of economically and politically free
nations.

Conclusion

Human rights advocates
should not shy away from uncomfortable truths. Perhaps the U.N.
will one day be dominated by democratic states that respect the
basic rights and freedoms of their citi­zens and demand similar
standards from all U.N. member states, but that is not the U.N. of
today. Failure by the U.S. and other nations to create a smaller,
more effective Human Rights Council that excludes human rights
abusers and non-democra­cies from membership should be a clear
sign that the U.N. is too heavily influenced by the human rights
abusers to serve as the sole authority for human rights. The U.S.
and other like-minded countries should establish a supplementary,
inde­pendent human rights body that meets those stan­dards
outside the U.N. framework.

Brett D.
Schaefer is Jay Kingham Fellow in Inter­national
Regulatory Affairs in the Margaret Thatcher Center for Freedom, a
division of the Kathryn and Shelby Cullom Davis Institute for
International Stud­ies, at The Heritage
Foundation.

[3]Mark P. Lagon, Deputy
Assistant Secretary for Interna­tional Organization Affairs,
U.S. Department of State, "The UN Commission on Human Rights:
Protector or Accomplice?" testimony before the Subcommittee on
Africa, Committee on International Relations, U.S. House of
Representatives, April 19, 2005, at http://www.state.gov/p/io/rls/rm/44983.htm (February 4,
2006).

[4]Current membership is
allocated by group, with 15 states from Africa; 12 states from
Asia; 11 states from Latin America and the Caribbean; 10 states
from the Western European and Others group, which includes the
United States; and five states from Eastern Europe. For a current
list of members, see U.N. Commission on Human Rights, "Membership,"
at http://www.unhchr.ch/html/
menu2/2/chrmem.htm (February 4, 2006).

[6]Hudson Institute and
Touro Law Center Institute for Human Rights, "Summary of the
Outcome of the Human Rights Com­mission Negotiations: Nothing
to Show," Eye on the UN, 2005, at
http://www.eyeontheun.com/un-reform.asp?p=77 (February
4, 2006).

[14]While most human rights
groups and treaties do not specifically identify economic freedom
among basic human rights, economic freedom is a critical element in
individual liberty without which the notion of basic human rights
is hollow. What can be more fundamental to human rights than the
freedom to enjoy the fruits of one's own labor? Protecting
indi­viduals from unreasonable or excessive confiscation of
their property is central to liberty, and permitting unreasonable
state confiscation of earnings or property severely inhibits their
ability to provide for their families and the pursuit of their
hap­piness. Such ties between economic and political liberty
extend back to the very beginnings of thought into the idea of
inalienable human rights, whose foremost philosophers perceived
such liberties as inextricable. For instance, John Locke asserted
that "every man has a property in his own person: this no body has
any right to but himself. The labour of his body, and the work of
his hands, we may say, are properly his." Thus, "[t]he great and
chief end…of men's uniting into commonwealths, and putting
themselves under government, is the preservation of their property.
To which in the state of nature there are many things wanting."
John Locke, The Second Treatise of Civil Government, 1690,
Chap. 5, Section 27, and Chap. 9, Section 124, at http://oregonstate.edu/instruct/phl302/texts/locke/locke2/2nd-contents.html
(February 6, 2006). As Thomas Jefferson noted in his 1801 inaugural
address, "A wise and frugal government, which shall restrain men
from injuring one another, shall leave them otherwise free to
regulate their own pursuits of industry and improvement, and shall
not take from the mouth of labor the bread it has earned. This is
the sum of good government, and all that is necessary to close the
circle of our felicities." Thomas Jefferson, Thomas Jefferson:
Writings (New York: Literary Classics of the United States,
Inc., 1984), p. 494. These ideals form the core of the U.S.
Constitution and the earlier Declaration of Independence, which in
turn were the inspiration for international recognition of inherent
individual rights.

[16]The countries that were
both "free" according to Freedom House's Freedom in the World
2006 and economically "free" or "mostly free" in the 2006
Index of Economic Freedom are Australia, Austria, the Bahamas,
Barbados, Belgium, Belize, Botswana, Bulgaria, Canada, Cape Verde,
Chile, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, El
Salvador, Esto­nia, Finland, France, Germany, Greece, Hungary,
Iceland, Ireland, Israel, Italy, Jamaica, Japan, Latvia, Lithuania,
Luxem­bourg, Malta, Mexico, Mongolia, the Netherlands, New
Zealand, Norway, Panama, Peru, Poland, Portugal, Slovak Republic,
Slovenia, South Africa, South Korea, Spain, Sweden, Switzerland,
Taiwan, Trinidad and Tobago, the United Kingdom, the United States,
and Uruguay. Because Freedom in the World ranks 192
countries and the Index ranks only 161, there may be
additional countries that could qualify but are not covered by both
publications. One example is Lichtenstein, which is not graded in
the Index but would probably be rated "free" or "mostly
free." Freedom House, "Freedom in the World 2006: Selected Data
from Freedom House's Annual Global Survey of Political Rights and
Civil Liberties," at http://www.freedomhouse.org/uploads/pdf/Charts2006.pdf
(February 4, 2006), and Miles et al., 2006 Index of
Economic Freedom.